Wendy Cervantes v. Kilolo Kijakazi

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 28, 2021
Decided December 21, 2021
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-3334
WENDY CERVANTES, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:17-cv-08347
KILOLO KIJAKAZI, Acting Sharon Johnson Coleman,
Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Wendy Cervantes applied for Social Security disability benefits and
supplemental security income based on an alleged disability that arose in January 2014.
An administrative law judge denied benefits, finding that Cervantes was able to
perform light work, subject to a few restrictions. Because substantial evidence supports
the ALJ’s determination that Cervantes is not disabled, we affirm.
No. 20-3334 Page 2
I
Cervantes filed her application for disability insurance benefits and
supplemental security income on March 10, 2014. At that time, she was 36 and had most
recently worked as a medical assistant. Cervantes left the job after suffering from an
anxiety attack when the doctor for whom she worked allegedly lost his temper in the
workplace.
Beyond chronic anxiety, Cervantes suffers from major depression, panic and
bipolar disorders, and PTSD. Many of these mental health impairments stem, at least in
part, from personal traumas Cervantes has experienced, including domestic abuse. The
record also shows that Cervantes experiences migraines, concentration problems, and
memory loss. Her treatment has included medication and therapy, with her doctors
seeing positive responses capable of being maintained with continuing care.
Cervantes also suffers from obesity, degenerative disc disease in her cervical
spine, a potential seizure disorder, fibromyalgia, problems with her left foot, sleep
apnea, and a left rotator cuff tear that arose after the alleged January 2014 onset date.
Many of these impairments are not ongoing or consistent, however, and others have
resolved themselves through treatment. More specifically, Cervantes does not report,
and the medical record does not show, ongoing or consistent seizures. Nor does the
record show regular findings of fibromyalgia by Cervantes’s treating physicians.
Similarly, surgical procedures seem to have resolved (or mitigated) Cervantes’s foot
and neck problems.
Cervantes’s examining and treating physicians, including Dr. Richard Margolin,
generally recorded normal findings throughout the relevant period. To be sure, during
the administrative proceedings before the Commission, Dr. Margolin submitted a
residual functional capacity or RFC Questionnaire offering the view that Cervantes was
disabled and reporting that she was “[c]onstantly” experiencing pain severe enough to
interfere with attention and concentration needed to perform even simple work tasks,
“[i]ncapable of even ‘low stress’ jobs,” and would likely be absent from work more than
four days per month because of her impairments.
Despite her physical and mental impairments, and from 2010 to January 2014,
Cervantes remained able to keep working as a medical assistant and to perform other
jobs that required her to carry out active work tasks involving the use of her arms and
hands and the movement of her neck.
No. 20-3334 Page 3
The ALJ conducted a hearing in October 2016. Cervantes appeared and testified
about her symptoms, medical treatment, daily activities, and abilities. Dr. Allen
Heinemann, an impartial medical expert, also testified. Based on his review of the
medical record, Dr. Heinemann opined that Cervantes could perform simple, routine,
and repetitive tasks in two-hour increments in a low-stress job requiring only
superficial, infrequent interaction with co-workers and the public. Vocational expert
Lee Knutson testified and offered the view that a person with Cervantes’s RFC could
work as a housekeeper, mailroom clerk, or dishwasher.
A
The ALJ canvassed the record and conducted the standard five-step evaluation
process prescribed by the Social Security Administration for determining whether an
individual is disabled. See 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ
found that Cervantes had not engaged in substantial gainful activity after the alleged
January 10, 2014 onset date. At steps two and three, the ALJ concluded that, while
Cervantes suffered from severe mental and physical impairments, these impairments,
taken alone or together, did not meet or medically equal any listed disability in the
applicable regulations. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, 416.926.
At step four, the ALJ determined that Cervantes had the RFC to do light work, as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with additional specified restrictions,
including that she is limited to understanding, remembering, and carrying out no more
than simple, routine and repetitive tasks. In reaching these conclusions, the ALJ
assigned “little weight” to Dr. Margolin’s proposed limitations conveyed in the RFC
Questionnaire, finding that they were out of proportion to the objective medical
evidence and supported by only cursory explanations.
At step five, the ALJ found that although Cervantes could not perform any of her
previous jobs, she was able to work in the positions identified by the vocational expert.
The ALJ therefore concluded that Cervantes was not disabled.
The district court affirmed and Cervantes then appealed.
II
Because the Appeals Council declined review, we take the ALJ’s decision as the
Commissioner’s final determination. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013). Our review of the ALJ’s decision is deferential. We will reverse only upon a
No. 20-3334 Page 4
showing that the ALJ committed a legal error or rested its determination on less than
substantial evidence. See Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). The substantial
evidence requirement does not present a high hurdle—the ALJ’s decision need only
identify “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
A
Cervantes’s first challenge is to the ALJ’s RFC determination. The RFC reflects
“the most [a person] can still do despite [the] limitations” caused by medically
determinable impairments and is assessed “based on all the relevant evidence in [the]
case record.” 20 C.F.R. §§ 404.1545, 416.945(a). Cervantes sees the ALJ’s RFC
determination as failing to account for the combined effect of her multiple, severe
impairments. We view the evidence differently.
The ALJ canvassed the medical evidence and fully accounted for Cervantes’s
physical and mental impairments. By way of example, the ALJ gave Cervantes “the
benefit of the doubt” by accounting for her fibromyalgia-like symptoms in the RFC
limitations despite “[s]uch findings hav[ing] not been recorded on anything
approaching a regular basis, despite the volume of medical records.” The ALJ similarly
explained that the examinations after Cervantes’s March 2014 left foot surgery “fail to
show a significantly abnormal gait or foot-related problems”—a conclusion we see as
consistent with the medical record.
Likewise, the ALJ considered the clinical and physical abnormalities found in
Cervantes’s neck, back, shoulder, and arm, but concluded that later physical
examinations failed to show a need for greater RFC limitations. The same is true for
Cervantes’s seizures. The ALJ found “no evidence” in the medical record showing that
seizures presented any “consistent ongoing” challenge, but nevertheless accounted for
them in the RFC by including restrictions against activities that would be dangerous if
Cervantes experienced a seizure at work.
Cervantes insists that various isolated statements in the medical record show the
need for greater RFC limitations. Not so in our view. The ALJ’s RFC limitations are
consistent with the totality of the medical record. Cervantes fails not only to explain
how she is more limited than the ALJ found, but also to identify what specific
additional restrictions the evidence establishes. This shortcoming proves fatal to her
challenge on appeal. See Gedatus v. Saul, 994 F.3d 893, 905 (7th Cir. 2021) (concluding
that there was no error in failing to assess the functional impact of tremors when the
No. 20-3334 Page 5
claimant “has not pointed to any medical opinion or evidence to show any tremors
caused any specific limitations”).
Substantial evidence also supports the ALJ’s determination that limitations for
Cervantes’s interactions with superiors were not warranted here. Particularly, the
testimony of the impartial medical expert Dr. Heinemann and the vocational expert Mr.
Knutson are consistent with the lack of such limitations. Right to it, no medical source
opined that Cervantes was more limited in her social functioning than found by either
Dr. Heinemann or the ALJ. So the ALJ committed no error in the RFC finding. See Rice
v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004).
Nor did the ALJ fall short in assigning “little weight” to the opinion of Dr.
Margolin, Cervantes’s treating physician, in determining her RFC limitations. Dr.
Margolin’s opinion was inconsistent both with the objective medical record and his own
examinations and treatment of Cervantes. Throughout the relevant period, Dr.
Margolin generally charted normal findings while evaluating and treating Cervantes.
Put another way, Dr. Margolin’s treatment records do not support his opinion (in the
RFC Questionnaire) that Cervantes would need to be absent more than four days per
month, could rarely move her neck, and could never twist, bend, crouch, squat, or climb
stairs. Dr. Margolin failed to explain this variance. Instead, and as recognized by the
ALJ, the “cursory” RFC Questionnaire he completed and submitted for the
administrative proceedings “provides little explanation or citation to relevant medical
findings supporting its conclusions.” There was no error in the ALJ discounting Dr.
Margolin’s opinion.
B
Cervantes waived her remaining arguments about greater restrictions being
needed to account for her limitations in concentration, persistence, or pace by not
raising them in the district court. See Jeske v. Saul, 955 F.3d 583, 597 (7th Cir. 2020)
(explaining that arguments not presented below are waived on appeal).
Cervantes raises a host of other issues in her brief—including challenging the
ALJ’s credibility determinations, the ALJ’s assessment of her psychiatric impairments,
and the ALJ’s consideration of her daily activities. We have carefully reviewed the
record and cannot find any support for these assertions in either the ALJ’s opinion or
our review of the hearing transcript.
For these reasons, we AFFIRM.